Behram Khurshed Pesikaka vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 24 September, 1954

Coram: Mehr Chand Mahajan, Vivian Bose, Ghulam Hasan, Bhagwati

In this case, the Court recorded that the matter was an appeal by special leave from a judgment of the High Court of Judicature at Bombay. The High Court had reversed an order of acquittal that had been passed in favour of the appellant by the Court of the Presidency Magistrate, 19th Court, Bombay, and had instead convicted the appellant of an offence under section 66(b) of the Bombay Prohibition Act, 1949, sentencing him to one month’s rigorous imprisonment and a fine of five hundred rupees. The bench comprised Justice Mehr Chand Mahajan, Justice Vivian Bose and Justice Ghulam Hasan, and the judgment was authored by Justice Bhagwati.

The appellant, who was then serving as the Officiating Regional Transport Officer for the Bombay Region, was travelling in his jeep on the evening of 29 May 1951 at about nine-thirty p.m. He was proceeding towards the Colaba Bus Stand when his vehicle struck three persons – Mrs Savitribai Motwani, her husband, and Miss Parvatibai Abhichandani. The police arrested the appellant at the scene and escorted him to the police station. From the police station he was taken to St George’s Hospital for a medical examination to determine whether he had consumed liquor. The examining doctor observed that the appellant’s breath smelled of alcohol. However, the doctor also noted that the appellant’s conjunctivae were congested, his pupils were semi-dilated but reacted to light, his speech was coherent, and he was able to behave normally and walk in a straight line. On the basis of these observations the doctor formed the opinion that, although the appellant had ingested some alcohol, he did not appear to be under the influence of alcohol at the time of examination.

The appellant was subsequently committed before the Presidency Magistrate to stand trial on two separate charges. The first charge was under section 338 of the Indian Penal Code on three counts, alleging that the appellant had caused grievous hurt to the three injured persons by driving his motor car in a rash and negligent manner. The second charge was under section 66(b) of the Bombay Prohibition Act, alleging illegal consumption of alcohol. During the trial the appellant cross-examined the medical doctor and asserted that he had taken a medicinal preparation known as B G Phos. He further answered the Magistrate on 20 December 1951, stating that he had not consumed any liquor but had taken a medicinal preparation that contained a small percentage of alcohol. The appellant also filed a written statement on 13 March 1952 in which he set out a detailed history of his case. In that statement he explained that, because of ill health, he had been advised to take tonics, especially those containing vitamin B complex and phosphates, and that he regularly consumed such tonics, including Wampole’s Phospho Lecitin, B G Phos, and Huxley’s Nerve Vigour. He further declared that on the night of the accident, after dinner and at about nine or nine-fifteen p.m., he had taken a dose of B G Phos and was then driving his jeep along Cuffee Parade and Marine Drive when the collision occurred. In support of his explanation, the appellant produced his driving licence, the vehicle’s registration certificate and a copy of the agenda of the Regional Transport Authority’s meeting that was scheduled for the following day, which indicated that the B G Phos preparation contained seventeen per cent alcohol according to its formula.

The Transport Authority had scheduled a meeting for the following day, during which it intended to consider a particular batch of B G Phos. The formulation of that batch was shown to contain seventeen percent alcohol. The learned Presidency Magistrate then acquitted the appellant of both the charge under section 338 of the Indian Penal Code and the charge under section 66(b) of the Bombay Prohibition Act. Concerning the prohibition-act offence, the magistrate observed that the evidence did not establish beyond doubt that the appellant had consumed alcohol without a permit. He noted that certain medicinal preparations containing alcohol were lawfully permitted, and that the prosecution had failed to produce satisfactory proof that the appellant had taken only liquor, which would have required a permit, rather than the alleged medicinal tonics. Accordingly, the magistrate found that the requisite element of unlawful consumption without a permit was not proved.

The State of Bombay subsequently filed two separate appeals before the High Court, each challenging one of the acquittals. The High Court affirmed the acquittal on the section 338 charge but reversed the magistrate’s order of acquittal on the section 66(b) charge. In doing so, the Court relied upon an earlier decision of its own Division Bench in Rangarao Bala Mane v State, where it was held that once the prosecution proves that a person has drunk liquor without a permit, the burden shifts to the accused to demonstrate that the liquor consumed was not prohibited, for example, that it was a medicinal preparation permitted by law. The High Court therefore concluded that the magistrate had erred in law by failing to consider this burden-shifting principle. The Court examined the evidence anew and determined that the appellant had not shown that the B G Phos he took after dinner was the source of the alcoholic odor detected in his mouth at 11.30 p.m. when examined by a doctor. The Court found that the appellant failed to establish any circumstance indicating that the liquor he consumed was a lawful medicinal preparation rather than prohibited liquor. Consequently, the High Court set aside the magistrate’s order of acquittal, convicted the appellant of the offence under section 66(b), and imposed the sentence previously ordered. The appellant then contended before this Court that the Bombay Prohibition Act of 1949 had been struck down after the Constitution came into force, citing the Supreme Court’s decision in State of Bombay and Another v F N Balsara, which declared certain provisions of the Act invalid insofar as they affected the consumption of liquid medicinal preparations containing alcohol.

In the decision of The State of Bombay and Another v. F. N. Balsara ([1951] S.C.R. 682), the Court held that clause (b) of section 13 was invalid to the extent that it covered the consumption or use of liquid medicinal and toilet preparations that contain alcohol. The effect of that declaration was to remove such preparations from the prohibition created by section 13(b), and consequently section 66(b) became inoperative and unenforceable with respect to those medicinal and toilet preparations. Because of that interpretation, the prosecution, if it framed a charge under section 66(b) against an accused, had the burden to prove that the accused had consumed or used an intoxicant in violation of the Act. Section 13(b), read in this way, prohibited only the consumption or use of liquor—that is, spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet liquid preparations consisting of or containing alcohol—so that these categories alone constituted the prohibited liquor. On that construction, there was no basis for applying sections 105 or 106 of the Evidence Act, as the High Court had attempted to do. It was further submitted that even if the onus were placed on the accused to establish that he had taken a liquid medicinal or toilet preparation containing alcohol, that onus would be lighter than the prosecution’s burden, and once the accused raised such a defence, the burden would revert to the prosecution to disprove it. The respondent, however, argued the opposite. He maintained that the Balsara decision effectively inserted an exception or proviso into section 13(b), and that the responsibility to prove the existence of circumstances falling within that exception rested on the accused, with the court presumed to assume the absence of such circumstances in accordance with section 105 of the Evidence Act. He also contended that the prosecution could not possibly demonstrate that the accused had not taken any liquid medicinal or toilet preparation containing alcohol, a fact that lay within the accused’s knowledge, and therefore the burden of proving that fact lay with him. According to his view, once the prosecution satisfied its burden of showing that the accused had consumed liquor, the accused would then have to demonstrate that the liquor he consumed was a liquid medicinal or toilet preparation containing alcohol, as required by section 106 of the Evidence Act. The discussion then turned to the relevant provisions of the Bombay Prohibition Act, 1949, which were to be considered next.

The Court explained that the Bombay Prohibition Act had been enacted, among other purposes, to revise and combine the law relating to the promotion, enforcement and implementation of the policy of prohibition in the Province of Bombay. Section 2 (22) of that Act defined an “intoxicant” as any liquor. Section 2 (24) defined “liquor” to include spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol. Chapter III then established the prohibition, and section 13 (b) prohibited a person from consuming or using liquor. Section 13 (b) also constituted the penal provision, stating that anyone who, in contravention of the Act, any rule, regulation or order made thereunder, or any licence, permit, pass or authorisation issued, consumes, uses, possesses or transports any intoxicant or hemp shall, on conviction, be punished. The Court noted that before the amendment effected by Bombay Act XXVI of 1952, which came into force on 22 October 1952, the Act contained in section 103 only a presumption regarding the commission of offences in certain cases, a presumption unrelated to the issue before the Court. The Court then referred to its earlier decision in The State of Bombay and Another v F N Balsara, where it held that the definition of liquor in section 2 (24) was not ultra vires because, at the time of the Government of India Act 1935, the term “liquor” in India covered not only alcoholic beverages that produce intoxication but also all liquids containing alcohol. However, the Court found that the restrictions imposed by sections 12 and 13 on the possession, sale, use and consumption of liquor constituted unreasonable limitations on the fundamental right guaranteed by article 19 (1)(b) of the Constitution to “acquire, hold and dispose of property” insofar as they applied to medicinal and toilet preparations containing alcohol, and therefore declared those provisions invalid to the extent that they prohibited possession, sale, use or consumption of such articles. The Court clarified that the earlier categories listed in the definition of liquor—spirits of wine, methylated spirits, wine, beer and toddy—were separable and could be severed from the broader category of all liquids containing alcohol; consequently, the restrictions affecting those earlier categories were not unreasonable. Accordingly, section 13 (b) was held invalid only to the extent of its inconsistency, that is, insofar as it affected the consumption or use of liquid medicinal and toilet preparations containing alcohol. The Court then identified the question to be decided: the effect of this declaration of invalidity. Referring to Cooley on Constitutional Limitations, the Court quoted that when a statute is adjudged unconstitutional, “it is as if it had never been. Rights cannot be built up under it; contracts which …”

The Court explained that when a statute is declared unconstitutional, any contract or right that depends upon that statute becomes void, and the law provides no protection to anyone who acted under it. Consequently, no person can be punished for refusing to obey the statute before the declaration was made. The same consequence applies not only to a statute that is wholly void but also to any portion of a statute that is found to be unconstitutional; such a portion must be treated as if it never possessed any legal force at any time. The Court referred to the observation of Field J. in Norton v. Shelby County, 118 U.S. 425 (30 L.Ed. 178), where the judge stated that an unconstitutional act “is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is … as inoperative as though it had never been passed.” The Court also cited Rottschaefer’s Constitutional Law, page 34, which observes that the legal status of a legislative provision that violates the Constitution must be assessed according to the theory that courts treat such a provision as non-law in cases where its application would produce an unconstitutional result, implying that the provision never had legal force for the class of cases to which it is applied.

The Court further quoted Willoughby’s Constitution of the United States, Second Edition, Vol. I, page 10, explaining that a court does not annually repeal a statute it finds in conflict with the Constitution; rather, the court simply refuses to recognise the statute and decides the rights of the parties as if the statute had no application. While the court may give reasons for ignoring the statute, those reasons affect only the parties before it and do not constitute a judgment against the statute itself. The court’s opinion may serve as precedent for similar future cases, but the statute is not struck from the statute book; it is effectively not applied. The judgment concludes the rights of the parties in the present suit, leaving no binding effect on other litigants who may later bring a suit based on the same statute, who may rely on the earlier decision only as persuasive authority. Willis, in Constitutional Law, page 89, is also cited, stating that a judicial declaration of unconstitutionality does not annul or repeal the statute but merely ignores it for the purpose of determining private rights, rendering the effect of the statute as if it had never been passed. The Court emphasized that the declaration was a judicial pronouncement, and although Article 141 of the Constitution makes the law declared by this Court binding on all courts within the territory of India, the declaration does not amend or reenact any provision of section 13(b) of the Act.

The Court explained that the declaration did not create any new statutory provision nor did it amend or alter section 13(b) of the Act. No exception or proviso was inserted into that section. Consequently, the only effect of the declaration was to limit the prohibition in section 13(b) to the consumption or use of liquor that was validly prohibited, namely spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet liquid preparations that consist of or contain alcohol. According to this interpretation, the prohibition could be enforced only with respect to such validly prohibited liquor and the related penal provision, section 66(b). The Court further held that the consumption or use of liquid medicinal or toilet preparations containing alcohol could not be validly prohibited; therefore any person who consumed or used such medicinal or toilet preparations could not be charged with violating the Act. No offence could arise from the consumption of liquid medicinal or toilet preparations containing alcohol, and the provision in section 13(b), when read alongside the definitions of “intoxicant” and “liquor” in sections 2(22) and 2(24), was rendered inoperative to the extent of the inconsistency created by the declaration. The declaration effectively removed liquid medicinal and toilet preparations containing alcohol from the category of validly prohibited liquor. While other consequences of the unconstitutionality of section 13(b) might exist, the Court emphasized that the State was attempting to enforce the penal provisions of section 66(b) and thereby encroaching upon individual liberty. Penal statutes, the Court observed, must be strictly construed, and the State could punish only the consumption or use of liquor that fell within the validly prohibited class. Accordingly, the consumption or use of any intoxicant in contravention of the Act could be punished only if the prosecution proved that the accused had consumed or used liquor in violation of the enforceable provisions. Until such proof was produced, the accused could not be held guilty under section 66(b). For the purposes of the present enquiry, the only provision that could be relied upon to charge the accused was section 13(b), whose prohibition, by reason of the Court’s declaration, was enforceable solely with respect to the consumption or use of validly prohibited liquor.

In this part of the judgment the Court examined the scope of the prohibition that applied to the consumption or use of liquor that was validly prohibited, namely spirits of wine, methylated spirits, wine, beer, toddy and all liquid preparations that contain alcohol but are neither medicinal nor intended for toilet use. The respondent’s counsel pressed strongly before the Court that, although the declaration did not expressly use the words “exception” or “proviso,” it in effect created such an exception to section 13(b). The counsel argued that, as a result, the burden of proving that the appellant fell within the circumstances covered by that exception should rest on the appellant, relying on section 105 of the Evidence Act. The Court observed that this argument could not be sustained because the declaration did not contain any express wording of an exception or proviso. Instead, the declaration operated to nullify the prohibition against consuming or using liquid medicinal and toilet preparations that contain alcohol, rendering that prohibition without legal force wherever an accused was charged with violating section 13(b) of the Act. The Court then considered how the effect of the declaration on section 13(b) might be understood. One possible construction was that no person shall consume or use spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, except that the prohibition would not extend to liquid medicinal or toilet preparations containing alcohol, or to all non-medicinal and non-toilet liquid preparations consisting of or containing alcohol. When several interpretations were available, the Court questioned the justification for treating the declaration as having grafted an exception or proviso onto section 13(b) for the purpose of invoking section 105 of the Evidence Act. It noted that where multiple readings exist, the interpretation that favors the accused should be preferred, and any additional or special burden on the accused should arise only from a clear and unequivocal statutory provision, not from an indirect implication. The Court cited the authority in In re Kanakasabai Pillai (A.I.R. 1940 Mad. 1) to support this approach. Accordingly, the Court found it more consistent with criminal jurisprudence to interpret the declaration as meaning that the prohibition in section 13(b), when enforced after the declaration, applied only to the consumption or use of validly prohibited liquor—specifically the spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet liquid preparations containing alcohol—as expressly listed. If this interpretation governs, there can be no basis for holding that the prosecution’s sole duty is merely to show that the accused had taken some form of liquor, nor can the burden of proving the existence of an exception be shifted onto the accused.

In this case the Court explained that when a person is charged with an offence it is the prosecution’s responsibility to establish every element of the offence alleged. The elements of the offence under section 13(b) were that the accused had consumed or used liquor that was expressly prohibited, namely spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet liquid preparations that contain alcohol. The Court noted that the Act, as it stood, contained no presumption that would shift the burden of proof to the accused to demonstrate that he had only taken a liquid medicinal or toilet preparation containing alcohol. Likewise, there was no clause or proviso in section 13(b) that would bring section 105 of the Evidence Act into operation and thereby require the accused to prove the existence of circumstances that placed his conduct within an exception. The Court further observed that merely because the fact of the accused’s consumption of a liquid medicinal or toilet preparation was especially within his personal knowledge, this fact did not transfer the burden of proving the ingredients of the offence from the prosecution to the accused. The established principle of criminal jurisprudence in this country dictates that the prosecution alone must prove every ingredient of the charge. Consequently, the accused is not compelled to speak or to present a defence until the prosecution has discharged its burden and convincingly proved the accused’s guilt. The Court clarified that section 106 of the Evidence Act could not be interpreted to require the accused, on the basis of his personal knowledge, to prove that he had not committed the offence. The Court referred to the authority in Attygalle v. The King (A.I.R. 1936 P.C. 169) and also to In re Kanakasabai Pillai, affirming that section 106 does not displace the prosecution’s burden of proof.

The Court then turned to the earlier decision of the High Court in Rangarao Bala Mane v. State, which had been impressed by the difficulty the prosecution faced in proving that the accused had not consumed any form of medicated alcohol. The High Court had pointed out that numerous forms of medicated alcohol existed, and that it would be impossible for the prosecution, based on the facts, to exclude every possible form. It illustrated this difficulty by suggesting that if the prosecution produced evidence that the accused had not taken medicated alcohol in the form of B. G. Phos, the accused could contend that he had taken it in some other form, and similarly, if the prosecution proved the accused had not taken it in the form of Winedex, the accused could assert consumption of Waterbury’s Compound or Hall’s Wine. The Court recognized these examples as demonstrating the impracticality of excluding all forms of medicated alcohol. However, the Court concluded that the High Court’s view of an “imaginary” difficulty was misplaced. It held that once the prosecution satisfied its onus of proving that the accused had consumed liquor, the burden then shifted to the accused to show that the liquor consumed was a form of medicated alcohol and therefore not prohibited. The Court affirmed that this allocation of burdens adhered to the established legal principles and did not create an impossible evidential burden for the prosecution.

The Court observed that if the prosecution attempted to prove that the accused had not taken alcohol in the form called Winedex, the accused could simply contend that he had taken a different preparation such as Waterbury’s Compound or Hall’s Wine. The Court used these two illustrations to demonstrate that it is practically impossible for the prosecution to eliminate every possible form of medicated alcohol. Consequently, the Court concluded that once the prosecution had satisfied its burden of showing that the accused had consumed some kind of liquor, the remaining burden shifted to the accused to prove that the liquor consumed was in the form of medicated alcohol, meaning that it was not the prohibited liquor defined by the statute. In the Court’s view, the difficulty imagined by the High Court was fictitious. When a person is suspected of violating the prohibition law, it is the police who must investigate the alleged offence. During that investigation the police are required to determine whether the accused has consumed liquor that falls within the scope of the prohibition enacted by section 13(b). Because there exist many preparations classified as liquid medicinal or toilet products that contain alcohol, and likewise many preparations that are non-medicinal and non-toilet liquids containing alcohol, it is the duty of the investigating officers to identify which of the latter category the accused actually consumed and to charge him accordingly.

The Court further held that the mere fact that the accused emitted the smell of alcohol and had taken some form of liquor does not, by itself, constitute conclusive proof of guilt. The odour could equally result from the consumption of medicinal or toilet preparations that contain alcohol, rather than from the intake of prohibited spirits such as wine, methylated spirits, beer, toddy or any other non-medicinal, non-toilet alcoholic preparation. Convicting the accused solely on the basis of the smell would deny him the benefit of doubt that the law grants whenever the facts could be interpreted either as indicating guilt or innocence. The Court warned that adopting the reasoning of the High Court would effectively create a presumption that any consumption of liquor, however described, was of the prohibited type, thereby placing the onus on the accused to disprove that presumption by proving he had taken only medicinal or toilet preparations. The Court emphasized that the challenges faced by the prosecution in proving its case should not prevent it from reaching a correct conclusion, and that any genuine difficulties should be addressed by the legislature rather than by the judiciary.

The Court explained that it was the legislature’s responsibility to amend the law, and that the Court could not insert words into the statutory text that were not there or devise a way to bypass difficulties in enforcing the statute, even if the legislative purpose was commendable. The Court further observed that if difficulties were experienced in applying the policy of prohibition in the State of Bombay, the proper remedy was for the legislature to make the necessary changes, as it had done when the Bombay Act XXVI of 1952 was enacted on 22 October 1952 after this Court had issued the declaration in The State of Bombay and Another v. F. N. Balsara. In the present case, the Court held that it was insufficient for the prosecution merely to establish that the appellant had taken alcohol in some form. The prosecution was required to prove that the appellant, contrary to the provisions of the Act, had consumed an intoxicant, meaning any liquor that, in view of the Court’s earlier declaration, could be described only as “validly prohibited liquor,” that is, spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet preparations consisting of or containing alcohol. The medical evidence presented demonstrated only that the appellant had ingested alcohol in some manner, but it did not show that the alcohol fell within the category of prohibited liquor. Consequently, the Court concluded that the prosecution had failed to establish that the appellant had committed the offence with which he was charged. Having reached this conclusion, the Court found it unnecessary to examine in detail the complex question of the burden of proof on the prosecution and on the defence in a criminal trial, even though that question had been argued on the basis of section 105 of the Evidence Act and the principles set out in Woolmington v. The Director of Public Prosecutions ([1935] A.C. 462). Accordingly, the Court allowed the appeal, set aside the conviction, and quashed the sentence imposed by the High Court. The judgment was delivered by Justice Jagannadhadas. The judge noted that, after reviewing the opinions of his fellow judges, he regrettably could not agree with the view expressed by Justice Bhagwati. The Court identified two legal issues for determination: first, which party bears the burden of proving that the liquor consumed by the appellant was or was not a medicinal or toilet preparation containing alcohol; and second, the nature and extent of proof required if the burden rested on the appellant. The answer to the first issue depended on the effect of the earlier decision of this Court in The State of Bombay and Another v. F. N. Balsara, which had addressed the definition of liquor in sub-section (24) of section 2 of the Bombay Prohibition Act, 1949 (Act XXV of 1949).

The Court observed that the judgment in The State of Bombay and Another v. F. N. Balsara had upheld the validity of the Bombay Prohibition Act but had declared clause (b) of section 13 to be invalid insofar as it affected the consumption or use of medicinal or toilet preparations containing alcohol. Justice Bhagwati, while holding that the declaration did not amend section 13(b) of the Act, opined that, in view of that declaration, the prohibition contained in section 13(b) should be understood, for the purposes of the present dispute, to apply only to the consumption or use of “non-medicinal or non-toilet liquid preparations containing alcohol.” Accordingly, he reasoned that the burden of proof rested on the prosecution to establish every element of the prohibition as it was now understood, and to negate any defence based on the use of medicinal or toilet preparations. In contrast, Justice Venkatarama Ayyar maintained that the effect of the decision in The State of Bombay and Another v. F. N. Balsara was not to amend section 13(b) but merely to render that provision partially unenforceable. He therefore concluded that the decision supplied a defence to the accused on the ground that the provision was unconstitutional when applied to medicinal or toilet preparations containing alcohol, and that the burden of establishing the facts necessary for that defence lay with the accused. The Court agreed that a judicial decision could not be said to perform a legislative function and that the Balsara decision did not, by its own force, amend the statute. The Court then cited a passage from Willoughby on the Constitution of the United States, Second Edition, Vol. I, page 10, which explained that when a court finds a statute in conflict with the Constitution it does not repeal or annul the statute; rather, it refuses to recognize it and decides the rights of the parties as if the statute had no effect. The court may give reasons for ignoring the statute, and those reasons may serve as precedent, but the decision affects only the parties before it and does not strike the statute from the books. The Court noted that such commentary applied to cases where the entire legislation was unconstitutional from the commencement of the Act, a situation covered by article 13(2) of the Indian Constitution, and that it did not directly address a circumstance falling within article 13(1). In the present matter, although the Balsara decision did not alter the Act, the declarations made therein were based on article 13(1), and the Court was concerned with the effect of that article.

In this case the Court observed that the earlier decision in The State of Bombay and Another v. F. N. Balsara did not involve a legislative amendment, yet the declarations it made were grounded upon article 13(1) of the Constitution, and the effect of that article was the point of concern. The Court therefore framed the question as follows: what consequence does article 13(1) have for an existing statute that is otherwise valid but contains a severable portion that infringes fundamental rights? According to article 13(1) the offending portion is regarded as void from the date the Constitution commenced, while the remaining portions of the statute continue to operate. From this premise two possible outcomes arise. The first outcome, which appeared to be favoured by the learned brother, Justice Venkatarama Ayyar, based on certain American cases, is that the severable part, though void, remains part of the Act but becomes unenforceable. The Court expressed an inclination to agree with that view, but noted that the issue had not been fully developed by either side; it had only been hinted at during the arguments, and the Court had not received all pertinent material from the counsel. The second outcome, which formed the basis of the arguments presented, is that the void portion should be removed from the statute entirely, resulting in a proportional amendment to the Act. Accordingly, the Court declared that it was necessary and appropriate to address the matter on the assumption of this second outcome. The next step for the Court was to determine the notional amendment that must be incorporated into the statute so that it aligns with the principles articulated in The State of Bombay and Another v. F. N. Balsara. The Court identified three relevant components: first, the definition of “liquor” in the Act, taken in its full extent, continues to be valid; second, the portion of section 13(b) that relates to liquid toilet or medicinal preparations containing alcohol is held to be invalid; third, that invalid portion of section 13(b) is severable from the remainder of the provision. The appellant’s counsel argued that the essence of the valid prohibition now lies in the consumption or use of liquor other than medicinal or toilet preparations containing alcohol. He therefore urged that section 13(b) should be read as having been amended accordingly, proposing that the term “liquor” be interpreted as “prohibited liquor” or given a limited meaning. The Court found this approach untenable because the definition of “liquor” with its inclusive content remains intact and must be applied wholesale to the term in section 13(b). To read the term otherwise would amount to importing a new definition of “prohibited liquor” into the statute, effectively creating a new offence. The Court clarified that the Balsara decision does not permit the insertion of a new definition or the rewriting of section 13(b); instead, it maintains the provision but treats the consumption or use of liquid toilet or medicinal preparations containing alcohol as a severable component, removing that component from the ambit of the prohibition because it is unconstitutional.

In this passage the judge explains that the earlier decision does not create a new definition nor does it rewrite section 13(b). The decision leaves section 13(b) untouched but treats the consumption or use of liquid toilet or medicinal preparations that contain alcohol as a separate matter, removing such consumption or use from the reach of the section because the prohibition of those preparations would be unconstitutional. According to the judge, the only way to achieve this result is to insert an appropriate exception or proviso into section 13(b). Justice Bhagwati, whose judgment is quoted, observed that if section 13(b) is to be regarded as amended, the amendment may be effected in a number of possible ways, that there is no compelling reason to prefer one over another, and that it would be unfair to the accused to interpret the provision in a manner that places the burden on him when a more favourable interpretation is available. Justice Bhagwati then presented several alternative draft wordings for section 13(b). The suggested wording reads, in part: “No person shall consume or use spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol ‘A’ as are not or which are not or other than or save or except or provided they are not but shall include liquid medicinal or toilet preparations containing alcohol or all non-medicinal and non-toilet liquid preparations consisting of or containing alcohol.” The portions marked ‘A’ represent the various possible insertions of an exception, while the portion marked ‘B’ represents a single insertion that would delete the whole reference to ‘A’. The judge notes that each of the alternatives indicated by ‘A’ functions merely as an exception or proviso and therefore falls squarely within the meaning of section 105 of the Evidence Act, which allows for exceptions or provisos in the definition of an offence. By contrast, inserting the ‘B’ provision while omitting the ‘A’ language would, in the judge’s respectful view, change the very meaning of the word “liquor” in the statute, an alteration for which no legal authority exists. The prior decision in State of Bombay v. F. N. Balsara, the judge reiterates, merely preserves the full meaning of the term “liquor” and severs, from the provision as a whole, the application to medicinal or toilet preparations, rather than redefining “liquor.” Consequently, the judge affirms his earlier view that the only proper method of giving effect to the decision is to graft an explicit exception or proviso into section 13(b). The judge then turns to an alternative approach suggested by Justice Bhagwati, which does not involve any textual amendment but instead reads the provision as referring to “prohibited liquor” as interpreted in the Balsara decision; the judge indicates that this alternative will be considered subsequently.

With great respect, the Judge expressed difficulty in assigning to a particular statutory provision a meaning that diverged from the plain sense of its words when read together with the definition contained in the Act. The judgment in The State of Bombay and Another v. F. N. Balsara, if it does not itself modify the provision, also does not provide merely an interpretative aid that would permit such a divergent construction. The issue, however, is not limited to a purely technical approach to the question. The Judge felt unable to attribute to the decision in The State of Bombay and Another v. F. N. Balsara, when read alongside article 13(1) of the Constitution, the effect of rendering section 13(b) of the Bombay Prohibition Act inoperative, an outcome that the legislature certainly did not intend. Accordingly, and relying on the submissions made by counsel for both parties, the Judge concluded that article 13(1) modifies section 13(b) only to a limited extent by the insertion of a suitable exception or proviso, rather than by a wholesale amendment. In that limited sense, the provisions of section 105 of the Evidence Act would be applicable to the situation, because the evidential rules would operate with respect to the amended statutory scheme. Consequently, whether one examines the impact of article 13(1) on section 13(b) in light of the Balsara judgment, the view expressed by the Bombay High Court that the burden of proof in such prosecutions rests upon the accused remains correct. The second question presented for determination concerned the nature and quantum of evidence that the accused must produce to discharge that burden. Both parties advanced extensive arguments, and the Court noted the existence of divergent authorities in the High Courts on this precise point. One authority is the Full Bench decision of the Allahabad High Court in Prabhoo v. Emperor (I.L.R. 1941 843), while the other is the later Special Bench decision of the Bombay High Court in Government of Bombay v. Sakur (48 Bom. L.R. 746; A.I.R. 1947 Bom.). The Judge held that it was unnecessary to resolve this apparent conflict in the present case, because, irrespective of which authority one follows, the appellate Court’s finding that the burden of proof had not been discharged on the material before it was sound. It was particularly noted that the appellant, in paragraph 8 of his written statement filed in answer to the charge, raised a specific defence but offered no proof of any facts within his knowledge that would make the defence reasonably probable, even though he could not prove the defence to the utmost degree of certainty. Accordingly, the Judge was of the opinion that the conviction of the appellant under section 13(b) of the Bombay Prohibition Act was justified.

In the instant case, the Court found the conviction of the appellant under section thirteen-b of the Bombay Prohibition Act, nineteen-forty-nine, to be legally correct. However, the Court decided that it was unnecessary to order the appellant’s return to imprisonment. Consequently, the sentence of imprisonment was reduced to the period that the appellant had already served. On that basis, the appeal was dismissed, subject to the modification of the sentence.

The Court expressed regret that it could not agree with the view advanced by the learned Justice Bhagwati. The factual background giving rise to the appeal had already been set out in the judgment of the learned brother, and there was no need to repeat those facts. The central issue for determination was whether, in a prosecution under section thirteen-b of the Bombay Prohibition Act, nineteen-forty-nine, for an alleged contravention of that provision, the prosecution was required to prove not only that liquor had been taken in some form but also that the liquor taken was not a medicinal preparation. The Bombay High Court, relying on its earlier decision in Rangarao Bala Mane v. State, had held that once the prosecution established that the accused had taken alcohol in some form, the burden shifted to the accused to prove that the substance taken was a medicinal preparation. That burden was said to arise under section one-hundred-five of the Evidence Act, on the ground that the exception was a matter within the accused’s knowledge and therefore the burden of proof lay on him under section one-hundred-six of the Evidence Act. The appellant contested the correctness of that approach, contending that it conflicted with the Supreme Court’s decision in The State of Bombay and Another v. F. N. Balsara.

The Court then turned to the statutory provisions that governed the question. Section two-twenty-four of the Bombay Prohibition Act defines “liquor” expansively to include all liquids consisting of or containing alcohol. Section thirteen-b makes it unlawful for any person to use or consume liquor, and a violation of that provision is punishable under section sixty-six-b. Because medicinal preparations that contain alcohol fall within the definition of liquor in section two-twenty-four, their consumption constitutes an offence under the Act. Accordingly, it cannot be a defence to claim that the consumed substance was a medicinal preparation, and the question raised before the Court could not have arisen under the Act prior to the Constitution. The Court next examined the effect of the Supreme Court’s ruling in The State of Bombay and Another v. F. N. Balsara on the statutory scheme. In that decision, the Court held, inter alia, that section thirteen-b, insofar as it prohibited the consumption of medicinal preparations, was an unreasonable restriction on the right to hold and enjoy property and was therefore void as being inconsistent with article nineteen-one-f of the Constitution.

The judgment held that prohibiting the consumption of medicinal preparations constituted an unreasonable restriction on an owner’s right to hold and enjoy property, and therefore it was void for being inconsistent with article 19(1)(f) of the Constitution. The appellant argued that the effect of this declaration was to exclude medicinal preparations from the operation of section 13(b). According to that argument, section 13(b) should be read as if it had been amended to provide that no person shall use or consume liquor except in the case of a medicinal preparation or toilet article. In that view, the accused would not need to rely on any exception, and no burden of proof would be shifted to him under section 105 of the Evidence Act. The appellant further contended that, because the offence consisted of consuming liquor that was not a medicinal preparation, the prosecution should bear the burden of proving that the substance consumed was a prohibited liquor. The respondent, on the other hand, maintained that the definition of “liquor” in section 2(24) embraces not only beverages but also medicinal preparations, and that this broader definition applied to section 13(b) as well. The respondent argued that the immunity granted to medicinal preparations containing alcohol by virtue of the decision in The State of Bombay and Another v. F. N. Balsara should be treated as an exception to section 13(b), and that the section should therefore be read as containing a saving in favour of such preparations, effectively an exception or proviso. Accordingly, the respondent submitted that the burden of establishing the existence of that exception under section 105 of the Evidence Act would fall upon the accused. The Court agreed with the appellant that section 105 was inapplicable. The matter did not involve any statutory exception, whether general or special, under the Penal Code or any other enactment defining the offence. The purported exception or proviso arose solely from the judicial decision and not from any statute, and consequently section 105 could not be invoked. Moreover, the Court found it difficult to view the decision in The State of Bombay and Another v. F. N. Balsara as having amended section 13(b) so as to remove medicinal preparations from its scope. Both parties based their arguments on the assumption that section 13(b) had been, in some manner, amended by that decision— the appellant insisting that the word “liquor” should be read as excluding medicinal preparations, and the respondent insisting that an exception or proviso in favour of such preparations should be inserted. The Court clarified that judicial decisions do not amend or add to statutes; such functions are exclusively legislative. Courts merely interpret the law and declare whether a provision is valid, without altering the statutory text.

When a court declares a provision to be invalid, the declaration means that the provision cannot produce any legal effect in a court of law. Consequently, if section 13(b) cannot be regarded as having been amended or modified by the decision in The State of Bombay and Another v. F. N. Balsara, there is no justification for assuming that medicinal preparations containing alcohol, which were within the scope of section 13(b) before that decision, have been removed from its scope after the decision. The argument therefore fails to provide any basis for shifting the burden onto the prosecution under section 13(b) to prove not only that the substance consumed was liquor but also that it was not a medicinal preparation. The question of who bears the burden of proof must therefore be resolved by looking at the language of section 13(b) as it presently stands, together with well-established principles of law, rather than by presuming a fictional amendment or an added exception. Section 13(b) makes it an offence to use or consume liquor, and the definition of “liquor” in section 2(24) expressly includes medicinal preparations that contain alcohol.

The State of Bombay and Another v. F. N. Balsara raised the contention that the State Legislature, which has authority to legislate on intoxicating liquor, could not use that authority to regulate medicinal preparations containing alcohol because the expression “intoxicating liquor” was thought to refer only to beverages and not to medicines. This Court rejected that contention, holding that the term “intoxicating liquor” had acquired an extended meaning that embraces medicinal preparations containing alcohol, and therefore the Legislature was competent to enact laws concerning such preparations. Since the definition of “liquor” in section 2(24) has been upheld in its extended sense, the word must be understood to include medicinal preparations wherever it appears in the statute, including section 13(b). Accordingly, under section 13(b) the Legislature has made it an offence to ingest alcohol in any form, be it a beverage or a medicinal preparation. Having decided that the portion of section 13(b) relating to medicinal preparations is void for being inconsistent with article 19(1)(f), the Court finds that the burden of proving whether the consumed substance was a medicinal preparation containing alcohol rests on the party challenging the constitutionality of the provision, because a statute enjoys a strong presumption of constitutionality and the onus lies with those who allege it to be unconstitutional.

The appellant argued that section 13(b) is invalid insofar as it criminalises medicinal preparations containing alcohol, because that provision contravenes article 19(1)(f) of the Constitution, and he relied on the decision of this Court in The State of Bombay and Another v. F. N. Balsara (supra) for support. However, before the appellant can fit his case within the precedent, he must first prove that what he actually consumed was a medicinal preparation. The claim of unconstitutionality cannot succeed unless every element required to sustain such a plea is established. As observed by this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh ([1953] S.C.R. 1188, 1202), “the burden of making out facts requisite for the constitutional invalidity of the convictions” rests on the appellant. Accordingly, the appellant must establish as a factual matter that the substance he ingested was a medicinal preparation, and, as a matter of law, that section 13(b) is improper when it prohibits that preparation. The Court’s earlier decision resolves the legal point in the appellant’s favour with respect to the second element, namely the invalidity of the provision. Nonetheless, the responsibility to prove the first element—that the consumed item was indeed a medicinal preparation—remains squarely on the appellant.

The appellant further contended that this Court had declared section 13(b) void under article 13(1) of the Constitution to the extent that it pertained to medicinal preparations, and therefore argued that the statute should be read as if it never included such preparations. The critical question that arose was what legal effect follows when a statute is held unconstitutional. The answer depends on two considerations. First, one must determine whether the constitutional prohibition infringes the Legislature’s competence to enact the law or merely serves as a check on the exercise of a power that lies within its competence. Second, if the prohibition functions merely as a check, it must be examined whether it is intended for the benefit of individuals or imposed for the benefit of the public as a matter of policy. Where a law exceeds legislative competence—for example, when a State enacts legislation that falls within the exclusive jurisdiction of the Union—the law is a nullity. The same result applies when a limitation is placed on legislative power in the public interest, such as the provisions in Chapter XIII of the Constitution relating to inter-State trade and commerce. Conversely, when the law is within the Legislature’s competence but is invalid because it conflicts with provisions designed to protect individual rights, the law is not a nullity but merely unenforceable. Such unenforceability can be waived, and upon waiver the law becomes enforceable. This principle is well established in American jurisprudence, as noted in Cooley on Constitutional Limitations, Volume I.

The Court referred to several authorities, including the pages 368 to 371 of a treatise, Willis on Constitutional Law at pages 524, 531, 542 and 558, and Rottschaefer on Constitutional Law at pages 28 and 29-30. It then cited American case law to illustrate the principle that a constitutional right can be waived by the person protected by it. In Shepard v. Barron, 194 U.S. 553 (48 L.Ed. 1115), the Court observed that “provisions of a constitutional nature, intended for the protection of the property owner, may be waived by him.” In Pierce v. Somerset Railway, 171 U.S. 641 (43 L.Ed. 316), the Court stated that “a person may by his acts or omission to act waive a right which he might otherwise have under the Constitution of the United States, as well as under a statute.” The Court also referred to Pierce Oil Corporation v. Phoenix Refining Co., 259 U.S. 125 (66 L.Ed. 855), where a statute was challenged on the ground that it unreasonably restricted a corporation’s right to conduct business and thus violated Fourteenth Amendment protections. In that decision the Court remarked that “there is nothing in the nature of such a constitutional right as is here asserted to prevent its being waived or the right to claim it barred, as other rights may be, by deliberate election or by conduct inconsistent with the assertion of such a right.” The Court held that the same principle must apply under the Indian Constitution when a law infringes a provision intended for the benefit of individuals. Article 19(1)(f) guarantees rights for property owners, and when a statute is found to violate that provision, any person whose right has been infringed may choose to waive the right. Once a waiver is effected, there is no legal obstacle to the enforcement of the statute. By contrast, if a statute were a nullity, it could not be waived nor enforced. Accordingly, a statute that is merely unenforceable because it conflicts with a constitutional provision may become effective when the affected party waives the right; it is not to be treated as a void law that must be erased from the statute book. The Court emphasized that the question of waiver is relevant to the present dispute not because it raises any factual issue for determination, but because it clarifies the nature of the right under article 19(1)(f) and the legal effect of a statute that contravenes that right. The Court then noted another distinction identified by American jurists between unconstitutionality arising from lack of legislative competence and unconstitutionality arising from a constitutional check on a legislature that otherwise had competence. A statute enacted by a body lacking competence cannot become valid simply because the legislature later acquires the necessary power. However, a statute that was within the legislature’s competence at the time of enactment but that infringes a constitutional prohibition may be enforced “proprio vigore” once the prohibition is removed. This principle is expressed in Willoughby on the Constitution of the United States, Volume I, page II, where it is stated that “the validity of a statute is to be tested by” the constitutional power of the legislature at the time of its enactment.

The Court explained that the validity of a statute must be measured against the constitutional authority of the legislature at the moment it was passed, and if that test shows the law exceeded the legislature’s power, the statute does not become valid simply because a later constitutional amendment confers the required authority, unless the law is reenacted. The Court further noted that when a law falls within the general legislative competence of the enacting body but is rendered unconstitutional because of some incidental circumstance—such as a situation where a State legislature is barred from regulating a matter because the Federal Congress has already legislated on that subject, or because the federal silence is interpreted to mean that regulation is prohibited—the law does not need to be reenacted to become enforceable once that particular cause of unconstitutionality is removed. The authority cited for this observation is the decision in Wilkerson v. Rahrer (140 U.S. 545; 35 L.Ed. 572). In that case the State of Kansas had enacted, in 1889, a statute prohibiting the sale of intoxicating liquors within the State. While the statute was valid with respect to intrastate sales, it was held unconstitutional insofar as it attempted to regulate interstate sales. The following year, in 1890, Congress passed legislation granting States the authority to enact prohibition laws covering interstate trade. After a prosecution was instituted under the 1889 Kansas Act for sales made after the 1890 federal legislation, one argument advanced was that the Kansas law was void at its inception because it was unconstitutional, and therefore could not be enforced even after Congress removed the obstacle. In rejecting that argument the Court observed: “This is not the case of a law enacted in the unauthorized exercise of a power exclusively confided to Congress, but of a law which it was competent for the State to pass, but which could not operate upon articles occupying a certain situation until the passage of the Act of Congress. That Act in terms removed the obstacle, and we perceive no adequate ground for adjusting that a re-enactment of the State law was required before it could have the effect upon imported [goods] which it had always had upon domestic property.” The Court then quoted Cooley’s treatise on Constitutional Law, page 201, stating: “A court’s decision merely decides the case that is then under adjudication, and a finding of unconstitutionality does not destroy the statute but merely involves a refusal to enforce it.” Rottschaefer, after discussing the conflicting authorities on this point, referenced the Wilkerson v. Rahrer decision as embodying the preferable view. The Court noted that this particular issue does not arise for determination in the present case, but it is relevant to demonstrate that a violation of a constitutional prohibition that does not affect legislative competence but merely imposes a check on legislative exercise does not render the law a nullity.

In this matter, the Court examined the significance of the term “void” as it appears in article 13(1) of the Constitution, noting that the use of that word does not, by itself, determine the exact consequences when a law is found to be inconsistent with the guarantee of freedom of speech and expression contained in article 19(1)(f). The Court referred to the commentary in Corpus Juris, volume 67, page 263 and following, which had been pointed out by counsel for the respondent. That commentary explained that the word “void” in statutes and judicial decisions can be understood in two distinct senses. One sense is that of an “absolutely void” provision, which the law or the very nature of things forbids from ever being enforced; such a provision is incapable of being confirmed or ratified. The other sense is that of a “relatively void” provision, which the law condemns as wrongful to individuals and therefore refuses to enforce against them, yet which may be waived or set aside in particular circumstances. This distinction was highlighted to show that a law declared void on constitutional grounds may not be annihilated in its entirety, but rather may become unenforceable only to the extent that it conflicts with fundamental rights.

The Court then considered the earlier decision of this Court in Kesavan Madhava Menon v. State of Bombay, reported in the Supreme Court Reports at page 228 of the 1951 volume. In that case the issue was whether the Constitution operated retrospectively, and Justice Das observed that article 13(1) does not render all existing laws that are inconsistent with fundamental rights “void ab initio” or for every purpose. Instead, the article makes such laws “void to the extent of their inconsistency,” meaning that they continue to exist for matters that do not clash with the rights, but they become ineffective and without legal force only insofar as they affect the exercise of those rights after the Constitution’s commencement. Justice Das further explained that article 13(1) should not be read as erasing the whole operation of the inconsistent statutes or removing them from the statute book, and that its effect differs from the expiry of a temporary law or the repeal of a law by a later enactment. Although the question before the Court in the present appeal differed from the one decided in the earlier case, the observations of Justice Das embody a principle that is applicable here. Accordingly, “void” in article 13(1) was interpreted in the language of American jurists as meaning “relatively void.” Consequently, a judicial determination that a law is void under article 13(1) because it is repugnant to article 19(1)(f) does not function as an amendment of the statute; it merely renders the law unenforceable to the extent of its inconsistency with the constitutional guarantee.

The opinion expressed was that the decision in The State of Bombay and Another v. F. N. Balsara (supra) could not be taken to remove medicinal preparations from the scope of section 13(b). Consequently, the provision remained enforceable. The court therefore agreed with the learned judges of the Bombay High Court, though for different reasons, that the burden of proving that the substance consumed was a medicinal preparation rested upon the appellant.

It was further contended that, even if the burden lay on the appellant to demonstrate that he had taken a medicinal preparation, the evidence showed that he had satisfied that burden. The doctor who examined the appellant at eleven-thirty p.m. on the day of the occurrence testified that the appellant was coherent in his speech, could walk in a straight line, that the smell of alcohol might have arisen from oxidation, and that the congestion of the conjunctiva in his eyes could have been caused by street dust. Counsel argued that because the prosecution’s evidence did not eliminate the possibility that the defence was true, the prosecution had not discharged its burden of establishing the offence, notwithstanding section 105 of the Evidence Act. The argument relied on Woolmington v. Director of Public Prosecutions ([1935] A.C. 462) and on Indian authorities such as Emperor v. U. Damapala (I.L.R. 14 Rang. 666) and Prabhoo v. Emperor (I.L.R. 1941 All. 843). In opposition to those authorities, counsel for the respondent cited Government of Bombay v. Sakur (A.I.R. 1947 Bom. 38; 48 Bom L.R. 616).

The issue then was whether, assuming the burden lay upon the appellant, the conclusion of the learned judges that the burden had not been discharged was reasonable on the evidence. If the conclusion was reasonable, the Supreme Court could not interfere with it in an appeal under article 136. It was noted that the appellant himself led no evidence in support of his plea. If the prosecution’s evidence had disclosed facts that might support the defence, the appellant could have relied on those facts without presenting independent evidence, but no such facts were elicited. The learned judges of the lower court were found to have approached the case from the correct standpoint and to have examined the entire evidence to determine whether the defence was reasonably probable. They held that the appellant’s ability to give coherent answers and walk in a straight line indicated that he was not intoxicated at that moment, but did not prove that he had not consumed liquor. They also remarked that the appellant could have informed both the sub-inspector and the doctor that he had taken medicine, which would have enabled the police to investigate whether a medicine bottle was present at his residence at that time. If the learned

The Court affirmed that the trial judges were correct in holding that the legal burden of proof rested upon the appellant. Their conclusion that the appellant had failed to discharge that burden was a finding that could not be challenged on any ground. It was further submitted that because the trial magistrate had acquitted the appellant, the statutory presumption of innocence that the law accords to an accused had been reinforced, and that there were no compelling reasons for the appellate Court to set aside the acquittal. However, the trial Court’s decision was based on a view that the burden lay with the prosecution to prove that the accused had not consumed any medicinal preparation. When the present Judges departed from that view, they were required to examine the evidence anew and to determine whether the appellant had, in fact, discharged the burden. Their determination on that issue was found to be free of any misdirection.

The consequent finding was that the conviction of the appellant under section sixty-six(b) of the Bombay Prohibition Act had to be upheld. Regarding the sentence of one month’s imprisonment that had been imposed, the record showed that the appellant had already served twenty-two days of that term. The Court held that it would not be just to return the appellant to custody for the balance of the term, and therefore ordered that the period of imprisonment be reduced to the time already undergone. Subject to this modification of the sentence, the Court expressed the opinion that the appeal should be dismissed.

The Court, having considered the judgments of the majority, therefore dismissed the appeal, subject to the modification that the sentence imposed on the appellant would be reduced to the period already served. In addition, the bail bond that had been executed in connection with the case was ordered to be cancelled. The Court recorded that an application had been made for a review of the judgments under article one hundred-thirty-seven of the Constitution. The Judges of the original Bench—namely Bhagwati, Jagannadhadas and Venkatarama Ayyar—had previously passed an order on twenty-eighth April, nineteen-fifty-four, referring the matter for the opinion of a Constitution Bench.

The order of the Court was pronounced by Justice Bhagwati. The Court granted the review application and reopened the case so that the opinion of a larger Bench could be obtained on the constitutional question raised in the earlier judgments. Pursuant to the proviso to article one hundred-forty-five of the Constitution, the Court referred the following question to the Constitution Bench: “What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara that clause (b) of section thirteen of the Bombay Prohibition Act, 1949, is void under article thirteen(1) of the Constitution, insofar as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, on the ground that it infringes article nineteen(1)(f) of the Constitution?” The Court stated that upon receipt of the Constitution Bench’s opinion, the matter would be taken up for further consideration.

On 23 September 1954, a five-judge Constitution Bench consisting of Chief Justice Chand Mahajan, and Justices Mukherjea, S. R. Das, Vivian Bose and Ghulam Hasan delivered an opinion on the reference that had been sent to them under article 145(3) of the Constitution. The Bench was hearing an appeal that arose under the provisions of Chapter IV of the Constitution, and it was directed to consider the specific question: “What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara ([1951] S.C.R. 682) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void, under article 13(1) of the Constitution, in so far as it affects the consumption or use of liquid medicinal or toilet preparation containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution?” The Bench noted that this question required interpretation of the interaction between the prohibition legislation and the fundamental right to trade in or deal with intoxicating liquors for medicinal or personal purposes.

The factual background that led to the reference involved Shri Pesikaka, who at the relevant time held the position of Regional Transport Officer for the Bombay Region. On the evening of 29 May 1951, at approximately 9:30 p.m., while travelling in his jeep toward the Colaba Bus Stand, he struck and injured three pedestrians. Police officers arrested him and placed him in custody, after which he was taken first to a police station and subsequently to St. George’s Hospital for medical examination. The examining doctor observed that Shri Pesikaka’s breath had the odor of alcohol, his conjunctiva were congested, and his pupils were semi-dilated but responsive to light. Although his speech remained coherent and he was able to walk in a straight line, the doctor concluded that the appellant did not appear to be under the active influence of alcohol, even though he had consumed alcohol in some form. On the basis of these facts, the prosecution charged the appellant with a rash-driving offence under section 338 of the Indian Penal Code and with an offence under section 66(b) of the Bombay Prohibition Act for consuming liquor without a permit. In his defence, it was argued that the appellant had taken a medicinal preparation known as B. G. Phos, which contained 17 percent alcohol according to its formula, and that no liquor had been consumed. The Presidency Magistrate, after hearing the case, acquitted the appellant, finding that the prosecution had not proved his guilt beyond reasonable doubt on either charge. Regarding the prohibition charge, the magistrate observed that certain medicinal tonics were lawfully permitted and that the evidence did not conclusively show that the appellant had consumed liquor requiring a permit rather than an allowed medicinal preparation. The State of Bombay appealed this acquittal. The High Court affirmed the acquittal on the rash-driving charge but reversed the magistrate’s decision on the prohibition charge, relying on its own earlier Division Bench decision in Rangarao Bala Mane v. The State, and held that the appellant had failed to demonstrate that the alcohol he consumed fell within the statutory exceptions.

In the earlier decision of the Division Bench in Rangarao Bala Mane v. State, the Court held that once the prosecution proves that a person has consumed liquor without a permit, the burden shifts to that person to demonstrate that the liquor was not prohibited but rather a type of alcohol exempted by law, such as medicated alcohol. Applying this principle to the present facts, the High Court found that the appellant had not established any circumstance that would lead the Court to conclude that the liquor he consumed fell within the exception carved out by the Bombay Prohibition Act. Consequently, the appellant was sentenced to rigorous imprisonment for one month and ordered to pay a fine of five hundred rupees. The State of Bombay appealed this order, and special leave was granted for the appeal to be heard by a three-Judge Bench comprising Justices Bhagwati, Jagannadhadas and Venkatarama Ayyar on 19 February 1954. The Judges were unable to reach a unanimous conclusion and expressed differing opinions. Justice Bhagwati favored allowing the appeal and setting aside the conviction. He argued that the onus lay on the prosecution to prove that the liquor consumed was prohibited under section 13(1) of the Act, and that the prosecution had failed to meet this burden. He further linked his view to the earlier declaration of unconstitutionality of a portion of section 13(b) in the case of State of Bombay and Another v. F. N. Balsara, contending that this decision undermined the prosecution’s case.

Justice Venkatarama Ayyar dissented from Justice Bhagwati’s approach. He maintained that the Balsara judgment did not remove medicinal preparations from the scope of section 13(b); rather, it merely rendered that specific portion of the provision unenforceable. Accordingly, he held that the onus remained on the accused to establish the plea of unconstitutionality, which required the accused to prove that the substance consumed was a medicinal preparation. Finding that the appellant had not discharged this burden, Justice Venkatarama Ayyar upheld the conviction affirmed by the High Court. Justice Jagannadhadas concurred with the ultimate result reached by Justice Venkatarama Ayyar but on different reasoning. He opined that giving full effect to the Balsara judgment required the insertion of an appropriate exception or proviso into section 13(b), thereby treating consumption of liquid or medicinal preparations containing alcohol as outside the provision’s ambit. In his view, the onus consequently rested on the accused to demonstrate that his case fell within this exception, a burden the appellant failed to meet. Accordingly, the majority affirmed the appellant’s conviction under section 66(b) of the Bombay Prohibition Act, dismissed the appeal, and reduced the sentence to the portion already served.

The Court explained that it did not adopt a fresh definition or rewrite the language of section 13(b). Instead, it retained the wording of the provision as enacted, but it interpreted the consumption of liquid or medicinal preparations containing alcohol to lie outside the reach of the section. In effect, this created an exception or proviso that was grafted onto section 13(b). Applying the reasoning derived from Balsara’s decision, the Court held that the responsibility to demonstrate that the accused’s conduct fell within this newly recognized exception rested on the accused. The accused was found to have failed to meet that burden. Accordingly, following the view expressed by the majority of the Judges, the conviction of the appellant under section 66(b) of the Bombay Prohibition Act was affirmed, the appeal was dismissed, and the sentence was reduced to the portion of the punishment that had already been served.

Paragraph 67 recorded that, after a petition for review was filed, the learned Judges granted a review on 26 April 1954 and reopened the matter so that they could obtain the opinion of the Constitution Bench of this Court on the constitutional question that had been formulated. Paragraph 68 set out the background necessary for appreciating that question. It recalled the earlier decision of this Court in The State of Bombay and Another v. F. N. Balsara (supra), wherein the constitutional validity of the Bombay Prohibition Act (XXV of 1949) was challenged on several grounds. That challenge was largely unsuccessful, and the Act was upheld except for a handful of provisions that were declared invalid. Among those, clause (b) of section 13(1) was held invalid insofar as it affected the consumption or use of medicinal and toilet preparations containing alcohol. The judgment also noted that section 2(24) defined “liquor” to include spirits of wine, methylated spirits, wine, beer, toddy and any liquid consisting of or containing alcohol. Section 13(1) prohibited the use or consumption of liquor without a permit, and section 66(b)—the penal clause—provided that any person who, in contravention of the Act, consumes or uses any intoxicant shall be punished upon conviction. The appellant had been charged under section 66(b) for having used or consumed liquor whose use was prohibited by section 13(1). The Balsara decision had declared the part of section 13 that brought all alcohol-containing liquids within its ambit to be invalid. Consequently, while the section remained intact for prohibited liquor existing before the Constitution came into force and for non-citizens thereafter, the invalid portion ceased to have legal effect for citizens. Paragraph 69 framed the residual issue: what is the effect of this partial declaration of invalidity of section 13(b) on a citizen prosecuted under section 66(b) for an alleged breach after the Constitution’s commencement? The Court indicated that its opinion on this question would be based on the effect of the declaration in Balsara.

The Court explained that the decision in State of Bombay and Another v. F. N. Balsara declared clause (b) of section 13 of the Bombay Prohibition Act to be void under article 13(1) of the Constitution insofar as it concerned the consumption or use of liquid medicinal or toilet preparations containing alcohol. By declaring that clause void, the Court rendered that portion of section 13(b) inoperative, ineffective and unenforceable. Consequently, the void portion possessed no legal force with respect to citizens and could not be treated as valid law for determining their rights. In effect, the scope of section 13(b) was narrowed so that, against citizens, only the part that remained valid and enforceable could be relied upon. The Court held that in any prosecution of a citizen under section 13(b) the offence could be proved only if it was established that the person had used or consumed liquor or an intoxicant that fell within the still-valid portion of the section. The part of the section that had been struck down could not be taken into account in such a prosecution because it had no legal effect. Accordingly, a criminal prosecution could not succeed unless it proved a breach of a provision that was legally enforceable and valid; the burden of proof did not shift to the accused to show that his conduct fell within the unenforceable portion.

The Court further observed that the High Court had erred in placing on the accused the obligation to demonstrate that he had consumed alcohol that could be taken without a permit merely because he was detected smelling of alcohol. The Court described the smell of alcohol as a neutral circumstance that could indicate either innocence or guilt. The odor might arise from consumption of prohibited alcohol covered by the enforceable part of section 13(b), or it might result from alcohol that fell within the void, unenforceable part of the section. Therefore, the duty rested with the prosecution to prove that the alcohol that produced the smell belonged to the category of prohibited alcohols; a mere demonstration of odor did not satisfy this burden. The Court noted that the intensity of the smell might itself suggest that the alcohol was not of a permissible variety, and that expert evidence could establish that small quantities of medicinal or other permitted preparations could not produce a detectable smell or a state of drunkenness. The Court emphasized that the determination was factual and dependent on the circumstances of each case. While an accused could present evidence that what he had consumed was not prohibited alcohol, a failure to do so would not lead to conviction unless the prosecution established beyond reasonable doubt that the case fell within the enforceable part of section 13(b), the contravention of which alone constituted an offence under section 66 of the Bombay Prohibition Act.

It was observed that preparations of medicinal or other substances that are lawfully permitted cannot generate either the odor of alcohol or a condition of the body or mind that would amount to drunkenness. Nevertheless, the determination of whether the odor or condition arose from prohibited alcohol is a factual question that must be decided on the basis of the circumstances of each individual case. The accused is entitled to present evidence in his defence to show that the substance he consumed was not a prohibited alcoholic beverage. However, the mere failure of the accused to establish this defensive point does not, by itself, justify a conviction. A conviction may be sustained only if the prosecution is able to satisfy the judge that the matter falls within the enforceable portion of section 13(b) of the Bombay Prohibition Act, and that a breach of that specific provision alone constitutes an offence under section 66 of the same Act. The court then set out the reasons for this view, which are detailed in the following discussion.

The court explained that the interpretation of the term “void” in article 13(1) of the Constitution is no longer a matter of fresh consideration; it is settled by the majority decision in Kesava Madhava Menon v. State of Bombay, reported in [1951] S.C.R. 228. The minority view in that case had held that “void” meant the same as “repeal”, so that any statute clashing with fundamental rights would be completely erased from the statute book and deemed void ab initio. The majority, however, rejected this view. It held that the word “void” in article 13(1), when applied to existing laws, does not erase those statutes from the books nor render them wholly invalid, because article 13 was not intended to have retrospective effect. The majority further held that once the Constitution came into force, article 13(1) nullified any repugnant laws, rendering them ineffectual, nugatory and devoid of any legal force or binding effect. The court added that, as explained in one of the majority judgments, the American rule that a statute repugnant to the Constitution is void from its inception does not apply to obligations incurred or rights accrued under a law that was constitutional when it was enacted. The rule does apply, however, to any law enacted after 26 January 1950 that is inconsistent with the Constitution; in such cases India follows the same approach as the United States. Consequently, the portion of an existing law that is unconstitutional is to be treated as non-existent, null and void. For the purpose of determining the rights and obligations of citizens, that declared-void portion should be considered removed from the statute for all practical purposes, even though it may remain printed in the statute book and may continue to have effect for matters relating to rights and obligations that arose before 26 January 1950, or for persons whose fundamental rights were not yet guaranteed by the Constitution. Thus, in this situation there is no scope for introducing

In this passage the Court observed that expressions such as “relatively void,” which had been coined by American judges while interpreting a Constitution drafted in language different from that of India, were unfamiliar to Indian jurisprudence. The Court further stated that it could not accept the opinion of the learned brother Venkatarama Ayyar, who had suggested that a declaration of unconstitutionality based on lack of legislative power differed fundamentally from a declaration based on infringement of fundamental rights. The Court explained that it was not correct to regard the provisions of Part III of the Constitution merely as a check on legislative action. It was held that whenever a written fundamental law limited the law-making authority of a State, any statute enacted in conflict with that fundamental law exceeded the legislature’s competence and was therefore a nullity. Accordingly, both kinds of unconstitutionality attacked the same source of power and no real distinction existed between them; they represented two aspects of the same deficiency of legislative authority. The Court noted that the legislative powers of Parliament and of the State Legislatures, as conferred by articles 245 and 246 of the Constitution, were curtailed by the chapter on fundamental rights. A mere reference to article 13(2) together with articles 245 and 246 was sufficient to indicate that Parliament or a State Legislature possessed no competence to enact a law that clashed with Part III after the Constitution had come into force. Article 13(2) read: “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” The Court described this provision as a clear and unequivocal command of the supreme law forbidding the State to enact statutes that conflict with Part III. The authority granted by articles 245 and 246 to make subject-wise legislation was qualified by the declaration contained in article 13(2); the power could be exercised only subject to that prohibition. The Court observed that in the earlier case of Kesava Madhava Menon v. The State of Bombay, the majority and the minority had agreed on the construction of article 13(2). The disagreement had arisen only on article 13(1), where some judges had felt that the article could not retrospectively invalidate laws that had been constitutional when enacted under the Constitution then in force. Finally, the Court expressed that it could not accept the view that, in a criminal prosecution, an accused person could waive his constitutional right and thereby be convicted. The Court referred to Cooley’s Constitutional Limitations, volume I, page 371, which made clear that while a party might consent to waive property rights, the trial and punishment for public offences were not matters that could be surrendered by individual consent.

The Court observed that punishment for public offences could not be subject to individual consent or agreement. It held that the doctrine of waiver, as articulated by certain American judges in interpreting the United States Constitution, could not be imported into the Indian Constitution without a more extensive discussion. Consequently, the Court stated that no inference in the present case should have been drawn on the basis of that theory. When the Attorney-General was questioned about the doctrine of waiver, he appeared unenthusiastic and did not endorse it. Although the Court did not finally express a definitive opinion on the matter, it remained unconvinced that the waiver theory had any relevance for construing the fundamental rights enumerated in Part III of the Constitution. The Court explained that those fundamental rights derived from the declaration in the preamble, whereby the people of India resolved to establish a sovereign democratic republic and to secure justice, liberty of thought, expression, belief, faith and worship, and equality of status and opportunity for all citizens. Accordingly, the rights were not inserted in the Constitution merely for individual benefit, even though they ultimately affect individual claims. Rather, they were incorporated as matters of public policy, and therefore the doctrine of waiver could not apply to statutes enacted as part of that constitutional policy. The Court cited articles such as 15(1), 20 and 21 to illustrate that a citizen could not invite discrimination by telling the State “you may discriminate,” nor could a citizen escape conviction by waiving the protections guaranteed under articles 20 and 21.

The Attorney-General argued that a strong presumption of constitutionality attached to statutes and that the burden of proving unconstitutionality rested on the party challenging the law. He maintained that the appellant must demonstrate the facts necessary to render the conviction unconstitutional, otherwise the challenge could not succeed. The Court rejected that approach in criminal cases. It noted that the constitutional invalidity of the portion of section 13(b) of the Bombay Prohibition Act had already been declared by this Court, and that, as a result, that portion ceased to have any legal effect in adjudicating cases against citizens. The Court emphasized that Article 141 of the Constitution mandates that the law declared by the Supreme Court is binding on all courts throughout India. In view of this clear provision, the Court found no scope in India for the American doctrine described by Willoughby in “The Constitution of the United States” (Vol. I, p. 10), where the author claimed that a declaration of unconstitutionality affected only the parties before the court and did not strike the statute from the statute book. The Court clarified that once a statute is declared void under article 13(1) or 13(2) by the Supreme Court, that declaration attains the force of law and the voided statute is no longer applicable to any person whose fundamental rights are infringed. Because there is no comparable statutory provision in the United States, the Court concluded that the doctrine articulated by Willoughby could not be applied in the Indian context.

The judgment referred to a view that, when a court declares a statute invalid, the decision does not erase the statute from the statute book. Instead, the opinion or the reasons given by the court may serve as a precedent for deciding other cases that are similar in nature. The judgment also explained that the parties to the particular suit are bound by that decision, but no other person or party is automatically bound. Consequently, a new litigant may file a fresh suit based on the same statute, and the earlier decision cannot be used as an estoppel against the new litigant; the earlier decision may be cited only as persuasive precedent. The commentary then contrasted this approach with the situation in India. Once a statute is declared void under article 13 (1) or article 13 (2) of the Constitution by this Court, that declaration acquires the force of law. The statute that has been declared void ceases to exist as law for any person whose fundamental rights would be infringed by it. The United States does not have a comparable statutory provision, and therefore the doctrine described by the learned author cannot be applied in the Indian context. In India, when a law has been struck down as unconstitutional by a Court, no other Court may give any notice to that law, and an accused is never required to begin his defence by pleading that the law is unconstitutional. The Court is not empowered to examine the portion of the law that has already been declared void, and consequently the accused does not bear any burden of proving that the law, already held unconstitutional, is also unconstitutional in the case at hand. The Court must simply consider the law that presently governs the land and may convict the accused only if his conduct contravenes that existing law.

Judge Jagannadhadas J. had earlier expressed the opinion that the proper way to give effect to the judgment in The State of Bombay and Another v. F N Balsara was to graft an exception or a proviso onto section 13(b) of the Bombay Prohibition Act, using the earlier decision as a guide, and to place on the accused the burden of proving that the exception applied. The present Court found that view to be incorrect. It observed, as the learned Judge himself noted, that a Court does not possess the authority to rewrite a statutory provision; the provision must remain as enacted. Accordingly, the Court has no power to insert an exception or a proviso into section 13(b). Moreover, the Court pointed out that unless there exists legislative competence to enact a law that conflicts with the provisions of Part III of the Constitution, there can be no authority to create an exception of the kind suggested. An exception or proviso may be added only to exclude from the substantive part of a section certain matters that would otherwise be covered by that section. However, when the legislature lacks the power to enact the substance of the proposed exception, it likewise lacks the power to add such an exception through any judicial amendment. Therefore, because the State does not have the power to enact laws that abridge fundamental rights, it cannot insert an exception by extracting a portion from a law that itself cannot be validly enacted. The Court concluded that the correct approach is to disregard the portion of section 13(b) that was declared void and to assess whether the prosecution has established the offence on the basis of the remaining, valid portion of the statute.

The Court observed that the State possessed no authority to enact a law that curtailed fundamental rights, and consequently it could not create an exception by removing a portion of a statute that itself was beyond its power to pass. Accordingly, it was unreasonable to treat the portion of section thirteen of the Bombay Prohibition Act declared void in The State of Bombay and Another v. F. N. Balsara as an exception and to apply the rule contained in section one hundred five of the Evidence Act to the appellant’s case. The proper method, the Court advised, was to disregard the segment of the section that had been struck down by this Court in the cited decision and to examine whether the prosecution had successfully established the offence against the accused under the remaining, valid portion of the law.

Having made the foregoing observations, the judgment was directed back to the bench that originally heard the appeal, namely the bench presided over by Justice Das. A judge on the Constitution Bench expressed a respectful dissent from the majority opinion delivered by the Chief Justice and indicated that it was his duty to answer the question referred to the bench and to briefly set out the reasons supporting his conclusion.

The judge then turned to the statutory materials relevant to the dispute. The appellant had been charged with an offence under section thirteen read in conjunction with section sixty-six(b) of the Bombay Prohibition Act, 1949 (Act twenty-five of 1949). The penal provision of section sixty-six(b) states that any person who, contrary to the provisions of the Act, (a) … (b) consumes, uses, possesses or transports any intoxicant or hemp, (c) … (d) … shall, on conviction, be punished …. Section two, clause twenty-two of the Act defines “intoxicant” as “any liquor, intoxicating drug, opium or any other substance which the State Government may, by notification in the Official Gazette, declare to be an intoxicant.” In light of this definition, the consumption, use, possession or transport of liquor falls squarely within the scope of the penal provision. Moreover, the statute punishes not merely the act of consuming liquor, but the act of doing so “in contravention of the provisions of this Act.” The prosecution, as reflected in the charge sheet, alleged that the appellant had consumed or used liquor in violation of section thirteen, the provision that sets out the prohibitions contained in Chapter III of the Act.

Section thirteen reads, in the relevant part, as follows: “No person shall— (a) …; (b) consume or use liquor; or (c) ….” Section two, clause twenty-four further defines “liquor” to include (a) spirits of wine, denatured spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, and (b) any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act. This definition expands the range of substances whose consumption or use is prohibited under section thirteen.

The provision stated that the State could, by a notification published in the Official Gazette, declare any substance to be liquor for the purposes of the Act. Consequently, the prohibition set out in section 13 applied to the consumption or use of every item listed in the definition of “liquor”. The Court observed that any person who consumed or used any of those enumerated substances violated section 13(b), and such consumption or use constituted an offence punishable under section 66(b). The Bombay Prohibition Act containing these provisions had come into force on 20 May 1949, and it was universally acknowledged that the Act was a valid piece of legislation enacted within the legislative competence of the Bombay Legislative Assembly. After the Constitution of India became effective on 26 January 1950, article 19(1)(f) granted all citizens the fundamental right to acquire, hold and dispose of property. Sub-article (5) of the same article, however, stipulated that nothing in clause (f) would affect the operation of any existing law insofar as that law imposed, or permitted the State to impose, reasonable restrictions on the exercise of the right conferred by clause (f) for the general public’s interest or for the protection of any Scheduled Tribe’s interests. The Bombay Prohibition Act of 1949, being an existing law, fell within this carve-out; therefore, the right under article 19(1)(f) could not invalidate the Act to the extent that it imposed reasonable restrictions as described in sub-article (5). The Court further held that if an existing law imposed unreasonable restrictions, such provisions would be inconsistent with the right guaranteed by article 19(1)(f) and, under article 13(1), would be void to the extent of that inconsistency. It is undeniably the Court’s function to assess whether the restrictions imposed by any existing statute, or any part thereof, on fundamental rights are reasonable or unreasonable in the interest of the public or for the protection of Scheduled Tribes. Should the Court determine that the restrictions are unreasonable, the offending portion of the Act would be in conflict with article 19(1)(f) and would be rendered void under article 13(1), not in its entirety but only to the extent of the inconsistency. This, the Court affirmed, is the correct legal position. Shortly after the Constitution’s commencement, the Bombay Prohibition Act was challenged in its entirety. A petitioner, identified as F. N. Balsara and asserting his status as an Indian citizen, approached the Bombay High Court seeking, among other reliefs, a writ of mandamus against the State of Bombay and the Prohibition Commissioner.

The High Court ordered the State of Bombay to refrain from enforcing the Prohibition Act against the petitioner and to permit him to possess, consume and use certain articles, specifically whisky, brandy, wine, beer, medicated wine, eau-de-colonne, lavender water and medicinal preparations containing alcohol. The Court agreed with some of the petitioner's arguments and disagreed with others, and accordingly declared some provisions of the Act to be invalid while holding the remaining provisions to be valid. Both the State of Bombay and the petitioner, F. N. Balsara, obtained a certificate under article 132(1) of the Constitution and appealed the decision to this Court. The Supreme Court rendered its judgment in those appeals on 25 May 1951, reported as The State of Bombay and Another v. F. N. Balsara. For the purpose of the present discussion, the Supreme Court made three principal findings. First, it held that entry 31 of List II of the Seventh Schedule to the Government of India Act, 1935, authorised provincial legislatures to enact laws concerning “intoxicating liquors”, which included the production, manufacture, possession, transport, purchase and sale of such liquors; consequently, the Bombay Legislature possessed the competence to enact the Bombay Prohibition Act, 1949. Second, the Court observed that the word “liquor” as understood at the time of the 1935 Act encompassed not only alcoholic beverages that produce intoxication but also any liquids containing alcohol, and therefore the definition of “liquor” in section 2(24) of the Act was not beyond the legislature’s power. Third, the Court examined sections 12 and 13 of the Act, which restricted possession, sale, use and consumption of liquor, and concluded that these provisions were unreasonable insofar as they applied to medicinal and toilet preparations containing alcohol; consequently, those provisions were invalid to the extent they prohibited the possession, sale, use and consumption of such preparations. However, the Court clarified that the same sections were not wholly void because other categories listed in the definition—spirits of wine, methylated spirit, wine, beer and toddy—were distinct and could be severed from the broader category of “all liquids containing alcohol”. Moreover, the Court recognised that the broader category could be subdivided into sub-categories such as liquid medicinal and toilet preparations, and that the restrictions on the remaining categories and on liquor containing alcohol other than medicinal or toilet preparations were not unreasonable. In the end, the Court declared certain provisions of the Act invalid, including section 13(b), but only to the extent that the provision affected the consumption or use of medicinal and toilet preparations containing alcohol.

Article 13(1) of the Constitution was invoked as the basis for the Court’s earlier declaration. The Court reasoned that the prohibition contained in section 13(b) of the Act, which barred the consumption or use of liquid medicinal and toilet preparations containing alcohol, constituted an unreasonable limitation on the fundamental right of individuals to acquire, hold and dispose of property, where such property was the alcohol-containing medicinal or toilet preparations in question. By virtue of article 141 of the Constitution, the judgment rendered by the Supreme Court in that earlier case acquired the status of law, and therefore it was binding upon every court throughout the Indian territory. The specific offence for which the appellant was charged was alleged to have occurred on 29 May 1951, a date that fell four days after the Supreme Court delivered its decision in The State of Bombay and Another v. F. N. Balsara. On 22 April 1952, the learned Presidency Magistrate acquitted the appellant, observing that the evidence did not conclusively demonstrate that the accused had consumed alcohol without a permit. The magistrate further noted that certain medicinal preparations were lawfully permitted, and that the prosecution had failed to produce satisfactory proof that the accused had taken those tonics, let alone any liquor for which a permit would have been required.

The State subsequently appealed the magistrate’s order to the High Court. Relying on its previous decision in Rangrao Bala Mane v. State, the High Court set aside the acquittal and reinstated the charge against the appellant. Neither the magistrate’s reasoning nor the High Court’s judgment made any reference to the Supreme Court’s earlier ruling in The State of Bombay and Another v. F. N. Balsara. After obtaining special leave, the appellant appealed to the Supreme Court. The appeal was heard by a Division Bench comprising Justices Bhagwati, Jagannadhadas and Venkatarama Ayyar. Justice Bhagwati, in a clear and respectfully stated manner, accepted that the earlier Supreme Court declaration was a judicial pronouncement. He affirmed that, although article 141 makes such pronouncements binding on all Indian courts, the effect of that declaration was not to create a new statutory provision nor to amend section 13(b) of the Act. Accepting this premise, the learned judge logically rejected the contention that the earlier decision effectively introduced an exception to section 13(b); consequently, the burden of proof did not shift to the appellant to demonstrate that his conduct fell within any such exception or proviso as prescribed by section 105 of the Evidence Act. The judge, however, proceeded to make further observations on the matter.

The Court explained that the sole consequence of the earlier declaration was that the prohibition created by section 13(b) could be enforced only against the consumption or use of liquor that was validly prohibited, namely spirits of wine, methylated spirits, wine, beer, toddy and all non-medicinal and non-toilet liquid preparations containing alcohol; consequently, the prohibition embodied in section 13(b) and the penal provision of section 66(b) could apply solely to those categories of liquor. The learned Judge then illustrated how this effect might be determined, observing that the impact of the declaration on section 13(b) could be interpreted in a number of ways, for example by reading the provision to forbid any person from consuming or using spirits of wine, methylated spirits, wine, beer, toddy and all liquids containing alcohol, except where such liquids were medicinal or toilet preparations, or by adopting any similar construction that excluded non-medicinal, non-toilet alcoholic liquids from the ban. He questioned why, when several interpretations were possible, the declaration should be understood as inserting an exception or proviso into section 13(b) that would bring section 105 of the Evidence Act onto the facts, stressing that where multiple readings exist the court ought to choose the interpretation that favours the accused rather than one that imposes an additional or special burden on him, and that any such burden should arise only from a clear and unequivocal statutory provision, not from an indirect judicial construction, citing the principle articulated in In re Kanakasabai Pillai. With due respect to the learned Judge, the Court noted that the methods he suggested for working out the declaration’s effect implicitly accept another form of amendment to the section, even though he had earlier held that the declaration did not alter or amend section 13(b). By contrast, Justice Venkatarama Ayyar maintained that the judiciary possesses no legislative power and that judicial decisions do not amend statutes but merely interpret them; therefore, a declaration that a statutory provision is invalid simply removes its effect without expunging the provision from the statute book. He further concluded that section 105 of the Evidence Act could not apply because article 19(1)(f) did not constitute an exception to section 13(b). Relying on the inclusive definition of “liquor” in section 2(24), which the Court had held to fall within entry 31 of List II of the Seventh Schedule to the Government of India Act, 1935, he applied that meaning to section 13(1) and held that the offence was complete once consumption or use of the defined “liquor” was proved, and that the argument that the consumed substance was a medicinal preparation containing alcohol was in effect a challenge to the constitutionality of the prohibition on liquid medicinal or toilet preparations under article 19(1)(f), a challenge that had been dismissed by the earlier declaration of invalidity.

The Court observed that the portion of the statute declared void did not simply disappear from the legislation after the judgment. The judge explained that section 105 of the Evidence Act could not be applied because article 19(1)(f) did not constitute an exception to section 13(b) of the Prohibition Act. The decision was based on the fact that the inclusive definition of “liquor” contained in section 2(24) of the Act had already been held to fall within entry 31 of List II of the Seventh Schedule to the Government of India Act 1935, and therefore that definition was valid. Consequently, the same meaning should be read into section 13(1). Under that construction, the offence was complete as soon as the consumption or use of “liquor” as defined was proved. The defence that the consumed substance was a medicinal preparation containing alcohol was considered only a challenge to the constitutionality of the clause that prohibited the use of liquid medicinal or toilet preparations containing alcohol, on the ground that it infringed the fundamental right guaranteed by article 19(1)(f). The judge held that the party relying on unconstitutionality must prove every element necessary to establish that claim. Justice Jagannadhadas, while inclined to agree with Justice Venkatarama Ayyar, noted that the particular constitutional argument had not been fully argued before the bench. He therefore turned to the argument presented before the Court, namely that the part of section 13(b) declared invalid should be regarded as having been removed from the Act, leaving the statute appropriately amended insofar as that part was concerned. He rejected the suggestion that the word “liquor” should be read as “prohibited liquor” or that it should acquire a limited meaning. He explained that the decision in The State of Bombay and Another v. F. N. Balsara (supra) did not introduce a new definition or rewrite the provision; rather, it left the provision intact but treated the consumption or use of liquid medicinal or toilet preparations containing alcohol as outside the scope of the provision because the prohibition was unconstitutional. The judge further stated that such an outcome could be achieved only by inserting a suitable exception or proviso into section 13(b).

The hearing concluded with Justice Bhagwati holding that the appeal should be allowed, while Justices Jagannadhadas and Venkatarama Ayyar dissented and preferred dismissal of the appeal. An application for review was subsequently filed on the ground that the judgments rendered by the learned judges involved constitutional questions beyond the jurisdiction of that bench and that such matters should be addressed by a Constitution Bench. By an order dated 26 April 1954, issued under the proviso to sub-article (3) of article 145, the bench referred the following question to the Constitution Bench for opinion: “What is the effect of the declaration in The State of Bombay and Another v. F. N. Balsara (supra) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, is void, under article 13(b) of the Constitution, insofar as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, on the ground that it infringes article 19(1)(f) of the Constitution?”

In the matter that had been referred to the Constitution Bench, the Court examined the declaration made in The State of Bombay and Another v. F. N. Balsara (supra) that clause (b) of section 13 of the Bombay Prohibition Act, 1949, was void under article 13(b) of the Constitution to the extent that it affected the consumption or use of liquid medicinal or toilet preparations containing alcohol, because such a prohibition infringed article 19(1)(f) of the Constitution. The Court then considered the proposition articulated by Field J. in Norton v. Shelby County (118 U.S. 425; 30 L.Ed. 178) that a judicial declaration of unconstitutionality renders a statute “no law” and that, for legal purposes, the statute should be treated as inoperative as if it had never been enacted. This dictum had been adopted by Cooley in his work Constitutional Limitations, Volume I, page 382, where he expressed the view that a statute adjudged unconstitutional is, in effect, as though it never existed. The Court rejected the unqualified acceptance of this proposition, noting that even American textbook writers have observed that Field J.’s statement requires qualification, as discussed in Willoughby on the Constitution of the United States, Volume I, page 11, and Willis on Constitutional Law, page 890. The Court observed that Field J.’s dictum applied to statutes enacted after the commencement of the Constitution and found to be in violation of its provisions. It could not be extended to statutes that were enacted before the Constitution came into force and were later declared unconstitutional. Consequently, the Court held that a judicial declaration that a pre-Constitution law is unconstitutional does not render that law void for all purposes, including for transactions that occurred prior to the Constitution’s commencement. Because the Bombay Prohibition Act was an existing law at the time the Constitution became operative, the declaration in The State of Bombay and Another v. F. N. Balsara (supra) could not affect actions taken under the Act before the Constitution’s commencement.

The Court further clarified that the decision in The State of Bombay and Another v. F. N. Balsara (supra) did not invalidate the entire Bombay Prohibition Act nor the whole of section 13(b). The judgment only struck down the part of section 13(b) that prohibited a citizen from consuming or using liquid medicinal or toilet preparations containing alcohol. The remainder of the section continued to be enforceable against non-citizens, and, with respect to citizens, the prohibition remained fully operative for the earlier categories of liquor, namely “spirits of wine, denatured spirit, wine, beer and toddy.” Moreover, the prohibition on “all liquids consisting of or containing alcohol” persisted for citizens, except to the extent that it barred them from consuming or using liquid medicinal or toilet preparations containing alcohol. In this context, the Court noted that the passages from Cooley’s treatise on constitutional limitations could not be applied, a conclusion that would be reinforced by the subsequent decision in Keshava Madhava Menon v. The State of Bombay (supra). The Court thus concluded that the only effect of the declaration was to render unconstitutional and void the specific prohibition on the consumption or use of liquid medicinal or toilet preparations containing alcohol, while leaving the remaining provisions of the Act intact and enforceable.

In this case, the Court noted that the principle of constitutional limitations and the statement made by Field J. could not be applied. The Court emphasized that this position was unequivocally confirmed by its earlier decision in Keshava Madhava Menon v. The State of Bombay. Because the Bombay Act was an existing statute, the Court explained that its declaration in The State of Bombay and Another v. F. N. Balsara had to be understood as having been made under article 13(b) of the Constitution. The Court clarified that article 13(b) did not automatically render all existing laws that conflicted with fundamental rights void from the beginning or in every respect.

The Court then described the effect of the declaration in The State of Bombay and Another v. F. N. Balsara. It held that the specific prohibition in section 13(b) against the consumption or use of liquid medicinal or toilet preparations containing alcohol imposed an unreasonable restriction on a citizen’s fundamental right guaranteed by article 19(1)(f). Consequently, that part of section 13(b) was unconstitutional and void to the extent of the restriction. The Court stressed that this meant the prohibition would be ineffective and would not apply to a citizen who consumed or used such liquid medicinal or toilet preparations. The Court added that no portion of the statute was removed, erased, altered, or amended, because that was not the Court’s function. Rather, the judicial declaration simply nullified the offending part, rendering it inoperative against a citizen exercising his constitutional right.

Accordingly, the Court explained that when a citizen faced a charge under section 66(b) read with section 13(b), he could assert the following defence: he was an Indian citizen who had consumed or used a liquid medicinal or toilet preparation containing alcohol, and he was entitled to do so under article 19(1)(f). The Supreme Court had declared that, in such circumstances, the prohibition of section 13(b) was void as against him with respect to that specific consumption or use. The Court observed that if this plea were proven, it would fully answer the charge. In other words, the judicial declaration supplied a complete defence for any citizen who had consumed or used liquid medicinal or toilet preparations containing alcohol.

The Court illustrated the practical consequence by supposing that, after the declaration, a person was charged under section 66(b) read with section 13(b). If the prosecution established only that the accused had taken alcohol in some form—as was the evidence of the doctor in the present case—and neither party presented any further proof, the Court reasoned that a conviction could not be sustained. The Court thus indicated that, absent additional evidence, the accused could rely on the statutory declaration to defeat the charge.

In order for a person to benefit from the declaration made in The State of Bombay and Another v. F. N. Balsara (supra), the first point that must be established is that the person is a citizen. The responsibility for proving citizenship rests entirely on the accused. The question that then arises is whether the proof of citizenship alone satisfies the entire burden placed upon the accused. The Court held that it does not. The accused must also allege and prove that he has actually consumed or used a liquid medicinal or toilet preparation that contains alcohol. Only when both facts—citizenship and the consumption or use of such a liquid—are proven can the accused invoke the benefit of the judicial declaration and set up a defence. The declaration rests on the principle that a citizen possesses a fundamental right to consume or use liquid medicinal or toilet preparations containing alcohol, and that section 13(b), insofar as it prohibits such consumption or use, imposes an unreasonable restriction on that right guaranteed by article 19(1)(f). Consequently, the onus is on the accused to demonstrate the specific circumstances in which the portion of section 13(b) that has been declared void ought not to apply to him.

If the accused succeeds in establishing both his status as a citizen and his consumption or use of the liquid in question, the declaration in The State of Bombay and Another v. F. N. Balsara (supra) will dictate that the prohibition contained in section 13(b) and the penalty prescribed in section 66(b) cannot be enforced against him, as they would conflict with his fundamental right. The Court emphasized that to suggest, after the judicial pronouncement, that the statute should be interpreted as if liquid medicinal or toilet preparations did not exist, or that the scope of the offence has been narrowed to cover only the earlier categories of liquor defined in the statute, is effectively to claim that the judicial decision has amended the statute. Likewise, to assert that the offence now concerns only prohibited liquor, thereby altering the definition of “liquor,” would be an improper amendment of the law. The Court reiterated that it is not within a Court’s competence to modify or amend legislation. The effect of the declaration in The State of Bombay and Another v. F. N. Balsara (supra) is not to add to, subtract from, or otherwise change the statutory text. Rather, the declaration simply declares, as a matter of law, that when a citizen consumes or uses a liquid medicinal or toilet preparation containing alcohol, the portion of section 13(b) that forbids such consumption or use shall be void with respect to that particular class of persons.

The Court observed that the declaration made in The State of Bombay and Another v. F. N. Balsara (supra) created a defence that is available only to a particular class of persons, namely citizens, who have consumed or used a liquid medicinal or toilet preparation containing alcohol. In effect, the declaration does not nullify the prohibition for everyone; it provides a legal shield solely for a citizen who falls within that specific circumstance. Consequently, it is the responsibility of the accused, who wishes to escape the operation of section 13(b) by invoking the declaration, to prove the factual situation or the surrounding circumstances on which the declaration is based. Thus, a person who contests the constitutionality of the section may rely on the declaration as a matter of law, but must still establish the particular facts that give rise to the defence in each individual case where the declaration is invoked. The Court then answered the question referred to it in accordance with this reasoning.

The Court noted that counsel had vigorously argued, both before the present Bench and earlier before the Division Bench, that accepting the view that the declaration operates to shift the burden of proof onto the accused would contradict the well-established principle of criminal jurisprudence that the prosecution must always bear the onus of establishing the charge. This argument had made a strong impression on Bhagwati J. and had also influenced the other members of the present Bench. However, the Court held that it is not unusual in certain categories of cases or under particular circumstances for the law to place the burden of proving a defence upon the accused. For example, Section 105 of the Evidence Act, Section 114 III(a) of the same Act, and Section 103 of the Bombay Prohibition Act each create statutory presumptions that reverse or shift the burden of proof onto the accused in specific situations. Likewise, Section 96 of the Indian Penal Code provides that “nothing is an offence which is done in the exercise of the right of private defence,” thereby imposing no duty on the prosecution to prove that the act was not done in self-defence. Rather, the provision furnishes the accused with a defence that can be established if the accused demonstrates that the act was carried out in defence of person or property and was reasonable in the circumstances. The Court affirmed that it was unnecessary to cite further instances. It concluded that the declaration in The State of Bombay and Another v. F. N. Balsara (supra) indeed confers a defence on a citizen who has consumed or used a liquid medicinal or toilet preparation containing alcohol against a charge under section 66(b) read with section 13(b) of the Bombay Prohibition Act, but that the onus of proving the factual basis of that defence remains with the accused.

The Court observed that the factual basis for the earlier declaration of law must be established by the accused, and that no difficulty arises from this requirement because the necessary facts are within the accused’s personal knowledge. The Court warned that adopting any contrary position would disregard the well-settled legal principle that a judicial declaration of invalidity does not, by itself, repeal, alter or amend the statutory provision in question. Accordingly, the Court held that the declaration does not function as an amendment to section 13(b) and therefore cannot be regarded as creating an implicit exception or proviso to that section, contrary to the view expressed by Jagannadhadas J. In reaching this conclusion, the Court found substantial agreement with the reasoning of Venkatarama Ayyar J on the particular issue under consideration. However, the Court expressly distanced itself from the remainder of Justice Ayyar’s observations, especially those concerning the waiver of unconstitutionality, the notion that fundamental rights serve merely as a check on legislative power, and the characterization of the effect of the declaration under article 13(1) as “relatively void.” On these matters, the Court chose not to express an opinion at this stage. The reference was answered in line with the majority opinion of the Constitution Bench. Subsequently, an Order dated 24 September 1954 was pronounced by a Bench comprising Justices Bhagwati, Jagannadhadas and Venkatarama Ayyar, who had originally heard the appeal. Justice Bhagwati delivered the Court’s Order. The Court noted that, according to the majority judgment of the Constitution Bench, the burden of proof rested on the prosecution to demonstrate that the alcohol the accused had inhaled fell within the category of prohibited alcohols. After hearing the Attorney-General, the Court recorded that the Attorney-General conceded that, on the material before the Court, the prosecution had not discharged this burden. Consequently, the Court ordered that the appellant’s conviction be set aside and that any fine paid be refunded, thereby quashing the conviction.